Randon & Tawney - [2023] FedCFamC2F 1021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Randon & Tawney [2023] FedCFamC2F 1021

File number(s): PAC 2320 of 2019

Judgment of: JUDGE NEWBRUN

Date of judgment: 15 August 2023

Catchwords: FAMILY LAW – PARENTING – Rice & Asplund – Leave to commence fresh parenting proceedings refused.

Legislation: Family Law Act 1975 (Cth) s 60CC

Cases cited:
Rice & Asplund [1978] FamCAFC 128

Saif & Saif [2020] FamCA 119

Sanders & Sanders (No 5) [2023] FedCFamC1F 59

Division: Division 2 Family Law

Number of paragraphs: 50

Date of hearing: 3 May 2023

Place: Parramatta

Counsel for the Applicant: Mr Katsinas

Solicitor for the Applicant: Kalpaxis Legal Pty Ltd

Counsel for the Respondent: Ms Hamilton

Solicitor for the Respondent: Gordon & Barry Lawyers Pty Ltd
ORDERS

PAC 2320 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR RANDON

Applicant

AND:
MS TAWNEY

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

15 AUGUST 2023

THE COURT ORDERS THAT:
1.The father’s Amended Initiating Application filed 4 October 2022 be dismissed.
2.All outstanding applications are otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION

This threshold hearing relates to final parenting orders made by Judge Boyle on 4 November 2019, by consent of the parties, in relation to the child, X, born in 2011 (“the child”). The child is currently aged 11 and will turn 12 next month.
The father is seeking to amend and vary the final orders made on 4 November 2019 on the basis that there has been a significant change in circumstances since the orders were made.
PROPOSALS
In summary, the father seeks:
(a)To spend an additional night per fortnight during school term with the child, from four nights each fortnight to five nights each fortnight;
(b)To spend half of the Term 4 school holidays in a block period with the child, as opposed to the current arrangement, which is for week about time, failing some other agreement between the parties;
(c)A variation in changeover arrangements such that on Wednesdays the changeover occur at school instead of at the child’s sports lesson. The father also seeks an order that the mother ensure that the child’s half siblings, two boys aged…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Randon & Tawney

Details

AGLC: Randon & Tawney [2023] FedCFamC2F 1021
Case: [2023] FedCFamC2F 1021
Decision Date

CaseChat Overview and Summary

The applicant, Mr Randon, sought to amend and vary final parenting orders made in relation to the child, X, born in 2011. The father proposed various changes to the existing orders, including an increase in the number of nights the child would spend with him during school term and a change in the changeover arrangements. The mother opposed the father's application and sought dismissal of the application. The legal issues before the Court were whether there had been a significant change in circumstances since the final parenting orders were made in 2019 and, if so, whether it was in the best interests of the child to permit the father to commence fresh parenting proceedings. The Court considered the evidence and submissions of both parties and found that the father had not demonstrated a significant change in circumstances that would justify reopening parenting proceedings. The Court concluded that it would not be in the best interests of the child to permit the father to commence fresh parenting proceedings, as it may expose the child to ongoing and potentially harmful litigation. The Court dismissed the father's application to commence fresh parenting proceedings.

Orders